Inspector Mahinder Seneviratne v Eric Roberts Trading Co Pty Limited

JUDGMENT: - 8 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Schmidt J

INSPECTOR MAHINDER SENEVIRATNE v ERIC ROBERTS TRADING CO PTY LIMITED Prosecution under s15(1) of the Occupational Health and Safety Act 1983

JUDGMENT 1 This prosecution was brought under s15(1) of the Occupational Health and Safety Act 1983 ('the Act'). It arose out of the operation of a particular machine at the defendant's premises at Wetherill Park. The defendant entered a plea of guilty. This judgment deals with the question of penalty.

2 The offence charged was: ERIC ROBERTS TRADING CO PTY LIMITED (ACN 081 798 334) , an incorporated company with its registered office located at Unit 703, Level 7, Thakral House, 301 George Street in the State of New South Wales DID FAIL to ensure the health, safety and welfare at work of its employees contrary to section 15(1) of the Occupational Health and Safety Act 1983, in such case made and provided in that: It is alleged that the Defendant, an employer, breached section 15(1) of the Occupational Health and Safety Act 1983 on 24 September 1999 at premises located at 21 Hallstrom Place, Wetherill Park in the State of New South Wales ("the premises"), in that it failed to ensure the health, safety and welfare at work of its employees, in particular Khamseun Doi. Particulars of the Defendant's failure are: (a) The Defendant failed to adequately guard a wire rolling machine at the premises.

3 The agreed statement of facts provided: 1 At all material times the Prosecutor was appointed under Division 1 of Part 5 and empowered by Section 106 of the Occupational Health and Safety Act 2000 to institute proceedings in this matter (or, in the alternative, Inspector appointed under Division 4 of Part 3 and empowered by section 48 of the Occupational Health and Safety Act 1983 to institute proceedings in this matter). 2 By the operation of Clause 13, Division 3 of Schedule 3 the Savings and Transitional provisions of the Occupational Health and Safety Act 2000 (the Act), Part 7 of the Act (Criminal and other proceedings) is extended to proceedings in connection with the Occupational Health and Safety Act 1983 (the former Act) in respect of offences committed against the former Act before its repeal of the former Act or whether such proceedings are instituted after the repeal. 3 The Prosecutor has conducted investigations into the circumstances surrounding an accident which occurred on 24 September 1999 at 21 Hallstrom Place, Wetherill Park in the State of New South Wales (the premises), and from those investigations the Prosecutor is able to state the following either from his own knowledge or upon information and belief: 4 At all material times, the Defendant, Eric Roberts Trading Co Pty Limited (ACN 081 798 334): 4.1 was an incorporated company with its registered office located at Unit 703, Level 7 Thakral House, 301 George Street, Sydney in the State of New South Wales; 4.2 carried on the import and distribution of wire products at the premises; and 4.3 employed Khamseun Doi as a processworker and Shaun Bellchambers as a storeperson at the premises. 5 On 24 Sept 1999 in the warehouse section of the premises, Doi's right hand became caught in a wirerolling machine ( the machine ). 6 Doi was operating the machine to produce rolls of wire netting of a predetermined length which were then wrapped in plastic for distribution. Doi had engaged the automatic mechanism of the machine which fed the wire netting through an uptake roller. As netting was being fed through, he noticed a leaf or some other similar foreign object being carried towards the uptake roller. Doi stopped the machine and withdrew the piece of foreign matter and then restarted the machine by pressing the green restart button with his right hand. As he lowered his right hand back towards his side, the fingers of a glove on his right hand became caught in the wire netting as it was pulled down towards the uptake roller. Doi's glove and hand were pulled to the inward rolling pinch point and his right hand and forearm were pulled in between the 2 rollers with his hand then being pulled up and around the uptake roller. 7 As a result of his accident, Doi suffered the following injuries: 7.1 Fractured right wrist. 7.2 Permanent numbness of the right hand. 7.3 Fractured right shoulder with ongoing pain. 7.4 Permanently damaged middle finger. 7.5 Amputation of the tip of the right ring finger. 7.6 Crush injury to the right forearm. 7.7 Peeling of skin from the right arm. 8 The Prosecutor attended the premises on 29 June 2001 and observed the following: 8.1 A blue-coloured machine made of steel identified by a metal plate attached to a motor on the right-hand side stating: 'SEW EURODRIVE PTY LTD Australia' 'Type R12A' 'No.2001.3882.901.2001' 'r/min 128'. 8.2 The machine contained: 8.2.1 start and stop buttons on the right-hand side of the machine and a stop button on the left-hand side; 8.2.2 The right-hand stop button was approximately 1330mm above floor level while the left-hand stop button was approximately 1290mm above floor level. 8.2.3 a fixed roller approximately 920mm above floor level; 8.2.4 a rolling bar approximately 1160mm above floor level that was adjusted with a spring-loaded lever and was attached to the motor on the right-hand side; 8.2.5 a metal trough located at the rear of the machine used as a cradle to place the large rolls of chicken wire for rolling. 8.3 The machine was approximately 1700mm wide across the frames. 8.4 The machine was not guarded. 8.5 A 920mm wide galvanised wiremesh roll was connected from the cradle on to the rolling bar. 8.6 The rolling bar was adjusted with the lever and brought down towards the fixed lower bar. The gap between the 2 bars was approximately 100mm. 8.7 When the green button on the right-hand side control was pressed by an operator who demonstrated the machine, the machine started and the wire was rolled around the rolling bar. 8.8 Both bars were turning at opposite directions and the nip point between the 2 turning bars became narrower as the wiremesh rolled around the rolling bar. 8.9 After approximately 10m of wire were rolled, the operator pressed the red button on the right-hand side control and the machine stopped. 8.10 He inserted a paper label and a polythene wrapper and then cut the wire with an electric splicing machine. 8.11 The operator stood in the walkway opposite the toilet while operating the machine. 8.12 The area where the machine was located had fluorescent lighting overhead. 9 On 6 July 2001 the Prosecutor issued a Prohibition Notice to the Defendant prohibiting the use of the machine until the risk of injury posed by the lack of adequate guarding or fencing was removed. 10 On 31 August 2001 the Prosecutor issued an Improvement Notice to the Defendant requiring it to securely fence the dangerous parts of the machine and place controls on the machine at a sufficient distance from the dangerous parts of the machine so that the machine would cease movement prior to a person accessing the dangerous parts of the machine. 11 Based on his observations and investigations, the Prosecutor found that: 11.1 the uptake roller mechanism of the machine was not adequately guarded while the machine was in motion; 11.2 the proximity of the start button for the machine allowed Doi to start the machine while in contact with the rotating rollers and the wiremesh being rolled; 11.3 there were reasonable preventative actions that could have been implemented by the Defendant to substantially reduce or eliminate the possibility of entrapment such as Doi experienced. 12 It is alleged that the Defendant, an employer, breached Section 15(1) of the Occupational Health and Safety Act 1983 on 24 September 1999 at premises located at 21 Hallstrom Place, Wetherill Park in the State of New South Wales ( the premises ), in that it failed to ensure the health safety and welfare of its employees, in particular, Khamseun Doi. In particular, the Defendant failed to adequately guard a wire rolling machine at the premises.

4 The defendant called evidence from Mr Michael Gallagher, its managing director, as to the circumstances in which the offence had been committed and the steps thereafter taken by the defendant to attend to the risk to safety which the accident had revealed. Evidence was also given in relation to safety in general at the defendant's workplace.

5 The offence arose out of the operation of a particular machine, infrequently used by the defendant, but operated by an employee with experience in its operation. Serious injury was inflicted when Mr Doi's gloved hand inadvertently came into contact with an unguarded nip point, whilst operating the machine. It was the case put by Mr Chin of counsel for the prosecutor and conceded by Mr Pearce of counsel for the defendant, that the risk to safety here in question was readily foreseeable and indeed obvious. Reference was made to the judgment of Fisher P in WorkCover Authority of NSW v Zac's Packs Pty Ltd [1995] NSWIRC 237 (Unreported, 20 December 1995) as to the risks posed by such unguarded nip points. It was also submitted and conceded that measures which would have removed the risk, were both feasible and available to the defendant prior to the accident.

6 Both the defendant and the prosecutor agreed that the maximum penalty available for this offence was $500,000 and that the appropriate penalty fell into the mid to low range.

7 The prosecutor accepted that in fixing penalty, the Court would take into account that this was the defendant's first offence; that adequate measures to address the risk to safety had been taken after the accident by the defendant and that it had co-operated with the prosecuting WorkCover Authority.

8 In addition to these matters, it was argued by the defendant that account would be taken of the relatively small size of the defendant's operations, that it was essentially an importer operating a warehouse; that the machine in question was infrequently used, and that the need for it to be guarded was not as obvious to the defendant as it would have been to an employer operating a manufacturing business, where such machinery was in constant use.

9 When the accident occurred the defendant ceased using the machine. Once the risk to safety had been identified, it isolated the machine and steps were taken to modify it, so as to ensure safety when it was operated, with the assistance of the WorkCover Authority. In addition, the group of companies of which the defendant was a member, then engaged an external consultant to advise it upon safety matters. As a result a detailed group wide safety policy and procedure had been prepared and implemented and a safety committee established, which continued to operate.

10 The defendant accepted its culpability, but submitted that its approach and its early plea to the offence and the other matters referred to, would result in the maximum available reduction of penalty otherwise flowing to it.

11 The starting point for the assessment of penalty is well established - the nature and quality of the offence in question. The parties' assessment of this offence was entirely correct - the risk in question was an obvious one, readily foreseeable and easily preventable, by available steps taken without difficulty after the accident had led to Mr Doi suffering serious injuries. As Fisher P observed in Zac's Packs Pty Ltd at p5: 'On any view of the facts, a serious deficiency in safe working had occurred.

Leaving dangerous moving parts of machines unfenced always has a potentiality for serious injury wherever it occurs. The injured employee on the evidence came into the immediate vicinity of the ZLM machine every day. Any error or misadventure, a stumble, a moment's distraction could lead to serious injury or worse.

The requirement to securely fence dangerous parts of machinery is directed to protecting any employee who may be exposed to danger from its operation. Liability is said to be absolute. On any view of the facts the ZLM machine was unguarded and the injured employee was required in the course of his employment to come into the immediate vicinity of the machine.'

12 Here the offence was also obviously serious, albeit the circumstances were somewhat different. This machine was only infrequently used. Serious injury, nevertheless, resulted when Mr Doi had stopped the machine to remove some debris which had fallen onto the wire and his glove was pulled into the nip point, after he had restarted the machine. This possibility was agreed to have been both readily foreseeable and preventable. Considerations of deterrence, both specific and general, plainly arise in these circumstances.

13 This was the defendant's first offence, a matter which I take into account. I also note the submissions made as to the nature of this business and its size. The fact that the machine in question was to be only infrequently operated does not, however, in my view sound in mitigation. Given the absolute nature of the liability imposed by s15 of the Act, it rather points to an obvious need for the defendant to take steps to ensure that work which employees may not frequently be called upon to perform, is safe when undertaken.

14 The other mitigating circumstances relied upon must, however, be taken into account in fixing penalty. They included the defendant's contrition, reflected in both its early plea and its acceptance of the foreseeability and preventability of the offence, which also, in my view, reflected a proper willingness on its part to facilitate the course of justice in this case. This approach has led to obvious utilitarian savings flowing from the early plea entered. Account must also be taken of the defendant's co-operation with the WorkCover Authority and the attention subsequently paid to ensuring safety, both by the defendant and throughout the group of companies of which it was a member. That response must be accepted as reflecting a very proper approach to the rectification of the risk to safety here revealed, as well as ensuring that safety, on a more general basis, was attended to at the various workplaces in the group.

15 In all of the circumstances, I take the view that the parties' assessment that penalty imposed should fall into the low to mid range, was correct. Given the maximum penalty here available and having regard to the various matters earlier mentioned, I have concluded that a penalty in the middle of that range is appropriate, reflective of the risk to safety which here arose, leading as it did to actual injuries suffered by Mr Doi. A penalty in the amount of $85,000 properly reflects all of those circumstances. I have also concluded that the penalty must be discounted for the reasons earlier outlined, by 25% in relation to the plea and 5% as to other matters, leading to a total penalty of $59,500.

16 For all of these reasons, the defendant is found guilty of the offence charged. The defendant is convicted and fined an amount of $59,500, with a moiety to the prosecutor. The defendant is ordered to pay the prosecutor's costs as agreed or in default, as fixed by the Court.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.